METHODOLOGICAL VERSUS NATURALISTIC LEGAL OBJECTIVITY KENNETH K. CHING*

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1 METHODOLOGICAL VERSUS NATURALISTIC LEGAL OBJECTIVITY KENNETH K. CHING* INTRODUCTION Han Solo and Luke Skywalker are having a debate. Aboard the Millenium Falcon, they have made a timely jump into hyperspace and narrowly escaped being obliterated by Imperial Cruisers. 1 Luke is with Obi-Wan Kenobi in the Falcon s hold area, and Obi-Wan is teaching Luke how to defend himself against a robot s laser beams using only a lightsaber and the Force. Han enters and sees the exercise. The robot blasts Luke in the leg. Han erupts with laughter. Han: Hokey religions and ancient weapons are no match for a good blaster at your side, kid. Luke: You don t believe in the Force, do you? Han: Kid, I ve flown from one side of this galaxy to the other. I ve seen a lot of strange stuff, but I ve never seen anything to make me believe there s one all-powerful force controlling everything. There s no mystical energy field that controls my destiny. It s all a lot of simple tricks and nonsense. Luke, undeterred, tries again, this time with a blaster helmet covering his eyes. The robot fires. Luke, trusting the Force, reacts. Incredibly, he deflects the laser. Han is unimpressed: I call it luck. Han and Luke s timeless debate about the seen versus the unseen bears on law s legitimacy and objectivity. Law s legitimacy depends, in part, on its objectivity. 2 If law is not objective but is biased, subjective, arbitrary or * Assistant Professor, Regent University School of Law. B.A., University of Nevada-Reno; J.D., Duke University School of Law. The author thanks the following people for their suggestions and comments on this Article: Judge Richard A. Posner, Dr. Gerald J. Postema, Nathan S. Chapman, C. Scott Pryor, Benjamin V. Madison, Whitnae Hallbauer, Michael V. Hernandez, Thomas C. Folsom, J. Haskell Murray, and Erin A. Ching. 1. STAR WARS EPISODE IV: A NEW HOPE (20 th Century Fox 1977). 2. See, e.g., Gerald J. Postema, Objectivity Fit for Law, in OBJECTIVITY IN LAW AND MORALS 99, 115 (Brian Leiter ed., 2001); cf. Stanley Fish, Almost Pragmatism: Richard Posner s Jurisprudence, 57 U. CHI. L. REV. 1447, 1462 (1990) (reviewing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990)) ( Law emerges because people desire predictability, 59

2 60 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 irrational, its subjects should deem law s use of coercive force illegitimate. So, it is important to ask whether law is objective. But before we can ask whether law is objective, we need to define legal objectivity. My goal in this Article is to accomplish that task by assessing and developing two competing conceptions of legal objectivity, one based on the works of Judge Richard Posner and Dr. Brian Leiter, and another based on work by Dr. Gerald Postema. Han Solo would be with Posner and Leiter. In 1990, Posner, in The Problems of Jurisprudence, 3 forcefully argued that legal objectivity could not be meaningfully founded on practical or legal reason, and this argument was continued in his other works Overcoming Law 4 and The Problematics of Moral and Legal Theory, 5 published in 1995 and 1999, respectively. In these books, Posner held that the best model for legal objectivity was empirical science, and he might as well have argued, like Han, that everything else was tricks and nonsense. In the same vein, Dr. Brian Leiter s 2007 book Naturalizing Jurisprudence argued that legal objectivity should be sought through the methods of empirical science, not through a priori reasoning. Leiter would likely warmly approve of Han s assessment: Hokey religions and ancient weapons are no match for a good blaster.... Leiter edited a book in 2001, Objectivity in Law and Morals, which contained an article Objectivity Fit for Law, by Postema. Postema described a conception of legal objectivity called publicity that was based on public deliberative reasoning. 6 Publicity is a methodological approach to legal objectivity, which holds that by creating legal judgments through a process of public, deliberative reasoning these judgments become objects. This kind of reason-based objectivity is rejected by Posner and Leiter in favor of an objectivity based on the methods of empirical science. Objectivity in Law and Morals gave occasion for a short debate between Leiter and Postema. Leiter claimed that Publicity provided no way of telling between better and worse ways of reasoning, and Postema argued that the relevance of empirical science to legal objectivity was in doubt. 7 But that conversation was truncated and underdeveloped, and it was never specifically revisited. In this Article, I seek to continue and expand on that conversation by assessing two conceptions of legal objectivity. stability, equal protection, the reign of justice, etc., and because they want to believe that it is possible to secure these things by instituting a set of impartial procedures. ). 3. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990). 4. RICHARD A. POSNER, OVERCOMING LAW (1995). 5. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999). 6. Postema, supra note 2, at Postema, supra note 2, at 134.

3 2012] METHODOLOGICAL VERSUS NATURALISTIC 61 The first conception of legal objectivity to be considered is based on the works of Posner and Leiter and is a naturalistic conception. Naturalism assesses law s objectivity based on the extent to which legal judgments correspond to empirical facts. It is the Han Solo, blasters over hokey religions theory of legal objectivity. The second conception we will consider is what Postema has called Publicity. Publicity assesses law s objectivity based on whether legal judgments are products of public reason. 8 It is a reason-driven conception. It is the Luke Skywalker, trust the Force conception of legal objectivity. There are other conceptions of legal objectivity that are not considered in this Article, for example, a conception that assesses law s objectivity based on whether legal judgments conform to an objective, ontologically real order a natural law or moral realist type of objectivity. 9 I have chosen only to consider naturalistic legal objectivity and Publicity for several reasons. First, I wanted to develop the unfinished conversation between Postema and Leiter about these two conceptions as being opposed to one another. Second, Postema s conception of objectivity has been virtually ignored in secondary literature, and I wanted to specifically draw attention to this conception of objectivity. And third, I did not want to distract from these goals by also assessing other controversial conceptions. This Article makes several contributions to the conversation started by Postema and Leiter. It offers a revised version of Publicity. Postema s version includes a regulative ideal of agreement among those who participate in deliberative discourse, but it expressly does not require any actual agreement among those participants. 10 I argue the contrary: Publicity does require some degree of actual agreement; why and how much I will explain below. Further, this Article offers new arguments for preferring Publicity over Naturalism. The 8. There is a strong relationship between Publicity and John Rawls s rendering in Political Liberalism of six essential elements of a conception of objectivity, and Postema acknowledges relying on Rawls to some degree. Postema, supra note 2, at n.26; see JOHN RAWLS, POLITICAL LIBERALISM (1993). The virtue of considering Publicity specifically, as opposed to objectivity more generally as described by Rawls, is that Publicity is a conception of objectivity directly tailored to law. It could be said that Rawls described a general idea applicable to any domain of discourse, which Postema has applied specifically to law. As such, Postema s explication of Publicity is rich and detailed with regard to legal objectivity in a way Rawls s survey of the elements required of any conception of objectivity did not attempt to be. See Lawrence B. Solum, Introduction: Situating Political Liberalism, 69 CHI.-KENT L. REV. 549, 567 (1994) (Solum has noted that Rawls s concept of political objectivity is barely explored in Political Liberalism. ). 9. See, e.g., Christopher Wolfe, Natural Law, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 581, 581 (Kermit L. Hall et al. eds., 1992) (describing natural law as claiming there is a certain order in nature that provides norms for human conduct. ); see also DAVID O. BRINK, MORAL REALISM AND THE FOUNDATIONS OF ETHICS 22 (Cambridge University Press 1989) (describing a naturalistic moral realism). 10. Postema, supra note 2, at 119.

4 62 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 first is that the best argument for Naturalism, that science has been more successful than reason, is actually a better argument for Publicity. A second is that the best argument against Publicity, the contingency of reason, is actually an argument for Publicity s ability to assess legal objectivity. Also, this Article describes an appropriate role for empirical science in a rationalistic approach to law like Publicity. Part I of this Article describes a naturalistic approach to law and legal objectivity. Part II of this Article describes a conception of legal objectivity based on public reason, Publicity. I revise Postema s version of Publicity by arguing that for a legal judgment to be objective, judging subjects must come to some degree of actual agreement. Part III of this Article argues that Naturalism is the wrong approach to legal objectivity for at least four reasons: (1) the lack of good reason to privilege scientific epistemology over a reasonbased, rationalistic epistemology; (2) Naturalism s inability to account for normative discourse; (3) scientific epistemology s lack of relevance to law s legitimacy; and (4) the inability of a naturalistic conception of objectivity to assess law s legitimacy. Part IV of this Article argues that Publicity is an appropriate conception of objectivity for inquiring into law s legitimacy because Publicity can assess law s legitimacy and can account for normative discourse, while also being able to incorporate the successes of science into its framework and adequately address concerns about the contingency of a reason-based epistemology. I. NATURALISTIC LEGAL OBJECTIVITY This Part describes a naturalistic conception of law and legal objectivity and is based on writings by Judge Richard Posner and Dr. Brian Leiter. Their work is independent, but it overlaps and describes essentially the same naturalistic approach to law and legal objectivity. To summarize their views, law is objective only to the extent that legal judgments correspond to empirical facts. As I discuss a naturalistic approach to law and legal objectivity, I will use terms that have close relationships to one another: Naturalism, empirical science, and pragmatism. Pragmatism will be used to describe an overarching philosophy with Naturalism as its ontology, empirical science as its epistemology, and consequentialism as its ethics. 11 While this description may be oversimplified, it is sufficiently accurate for the purposes of this Article. Naturalism, as ontology, defines what exists ( facts ) as that which is mind independent and makes a causal difference to the course of our experience. 11. David Luban, The Posner Variations (Twenty-Seven Variations on a Theme By Holmes), 48 STAN. L. REV. 1001, 1007 (1996) ( For Posner, pragmatism means being a consequentialist in ethics and a moderate skeptic in epistemology. ).

5 2012] METHODOLOGICAL VERSUS NATURALISTIC 63 Empirical science is the epistemology of Naturalism; it is the method by which we know facts. And consequentialism (which Posner and Leiter often refer to as pragmatism) is an ethical program in which conduct is judged based on its consequences, or as Posner or Leiter might put it, based on what practical difference it makes to us. My use of these terms often overlaps, but the meaning of each term should be clear in context. Naturalism assumes that reality is identified and described by the empirical sciences. 12 Blasters are real; the findings of hokey religions are not. Naturalistic objectivity is concerned only with empirical 13 or observable or physically existing facts. 14 A fact is naturalistically objective if it (1) is mind independent and (2) makes a causal difference to the course of our experience. 15 Recall Han s reasons for disbelieving in the Force: I ve flown from one side of this galaxy to the other... but I ve never seen anything to make me believe.... Seeing, is believing. Naturalistic legal objectivity is based on the identification of deterministic causes and effects of legal phenomena while minimizing or eliminating from legal decision-making nonempirical factors like morality, theology, human volition, agency, intuition, mind, free will, and most normative discourse. 16 There s no mystical energy field that controls my destiny, says Han. Naturalism is primarily an ontology, telling us what does and does not exist. Empirical facts exist; other phenomena do not. In short, reality is determined by science, and anything that cannot be observed empirically is eliminated by a naturalistic ontology. 17 In Han s words, It s all a lot of simple tricks and nonsense. The naturalistic approach to law and legal objectivity is based on the methods and results of empirical science. 18 A naturalistic approach to law leads to a program of identifying an explanatory unification of legal phenomena 12. BRIAN LEITER, Postscript to Part II: Science and Methodology in Legal Theory, in NATURALIZING JURISPRUDENCE 183 (2007); cf. POSNER, supra note 5, at 13 (While Posner does equate the real with the physically existing, he is careful to note that he is not claiming that the only worthwhile knowledge is scientific knowledge, lest he be accused of scientism. ). 13. LEITER, supra note 12, at POSNER, supra note 5, at Leiter, Objectivity, Morality, and Adjudication, in OBJECTIVITY IN LAW AND MORALS 66, 67 (Brian Leiter ed., 2001). 16. See BRIAN LEITER, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, in NATURALIZING JURISPRUDENCE 121, 135 (2007) (hereinafter LEITER, Legal Realism); BRIAN LEITER, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, in NATURALIZING JURISPRUDENCE 153, 180 (2007) (hereinafter LEITER, Hart/Dworkin Debate) (citing Jaakko Hintikka, The Emperor s New Intuitions, in 96 JOURNAL OF PHILOSOPHY 127, 143 (1999)); LEITER, supra note 14, at 185; cf. POSNER, supra note 3, at LEITER, supra note 12, at 185 (citing the Quinean assumption that it is within science itself, and not in some prior philosophy, that reality is to be identified and described. ). 18. Id. at 184.

6 64 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 with the other phenomena constituting the natural world Thus, Naturalism incorporates the sciences into law, including anthropology, sociology, psychology, and economics. 20 Naturalism looks to social scientific literature on law and legal institutions to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior. 21 A naturalistic approach to law may also consider other empirical data like public opinion and customs from around the world. 22 Thus, a naturalistic legal objectivity would assess law s objectivity by asking, To what extent are legal judgments based on empirical facts? The incorporation of science into law should lead to fruitful a posteriori research programs 23 and useful inventions. 24 The scientific method is based largely on the use of controlled or natural experiments. 25 The incorporation of science into law is meant to allow us to predict, 26 understand, and perhaps even control our physical and social environment by yielding knowledge. 27 In a naturalistic approach to law, legal theories should generate predictions that are empirically refutable, and then such theories would be tested by comparing a theory s predictions with observable results. 28 For example, a naturalistic approach to law should lead to judicial decisions being determinate and replicable. 29 As with natural science, it is sometimes impossible, impractical, or unethical to obtain observable results of a theory. 30 In such a case, through indirect evidence or inference, a theory may be indirectly, and often reliably, verified. 31 A naturalistic approach to law is about means, not ends. 32 It is like Han Solo, who Princess Leia describes as quite a mercenary when she learns he is only helping her for the money. 33 Naturalism prefers means because 19. See LEITER, Legal Realism, supra note 16, at Id. at 134; POSNER, supra note 3, at 63 (giving special emphasis to the role of economics in understanding and reforming law). 21. LEITER, supra note 12, at POSNER, supra note 5, at See LEITER, Legal Realism, supra note 16, at See POSNER, supra note 5, at 60; see also POSNER, supra note 3, at 62 (noting that an example of a useful invention might be pretrial conferences, which may foster settlement by reducing uncertainty about trial outcomes). 25. POSNER, supra note 3, at POSNER, supra note 3, at 26. The scientific approach to law owes much to Justice Oliver Wendell Holmes, Jr. s prediction theory of the law. Id. 27. See POSNER, supra note 5, at See id. at See POSNER, supra note 3, at 7, See POSNER, supra note 5, at 13; see also POSNER, supra note 3, at See POSNER, supra note 5, at See id. at STAR WARS EPISODE IV: A NEW HOPE, supra note 1.

7 2012] METHODOLOGICAL VERSUS NATURALISTIC 65 they are debatable in that they depend on factual assertions such as this law led to a decrease in bankruptcies and interest rates. But ends, or purposes or morals, are not debatable because they depend on non-empirical claims about values, such as the number of bankruptcies should decrease. 34 Posner gives an example of an argument for free speech: 35 free speech leads to intellectual progress. 36 Posner claims that whether free speech leads to intellectual progress is an appropriately debatable question about means because it can be refuted or confirmed by facts. 37 But, he notes, there are no empirical facts about whether we should value intellectual progress; therefore, such a question cannot be fruitfully debated. 38 A naturalistic approach to law concerns itself only with the debatable means, not the non-debatable ends. Debates about means (i.e., whether free speech had led to intellectual progress) could be naturalistically objective since they can be assessed by empirical facts, but a debate about whether intellectual progress should be valued could not be naturalistically objective because there is no scientific way to determine what should be valued. Similarly, naturalistic objectivity is focused on effects and results, not concepts. 39 Effects (like means ) are empirical facts, but concepts are not. Posner gives the example of the doctrine of hypothetical jurisdiction (now rejected by the U.S. Supreme Court 40 ): [I]f there are two possible grounds for dismissing a suit filed in federal court, one being that it is not within the court s jurisdiction and the other that the suit has no merit, and if the jurisdictional ground is unclear but the lack of merit is clear, the court can dismiss the suit on the merits without deciding whether there is jurisdiction. 41 Posner notes that this doctrine is conceptually illogical because a decision on the merits presupposes the concept of jurisdiction. 42 However, the pragmatic approach (which is closely related to Naturalism 43 ) to this question would utilize this doctrine because of its effects: (1) dismissing a case on its merits will not enlarge federal judicial power, which is the point of jurisdiction in the 34. POSNER, supra note 5, at See id. at See id. 37. See id. 38. Id. 39. See id. at Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, (1998). 41. POSNER, supra note 5, at Id. 43. Simply put, pragmatism asks: What practical difference does it make to us? The incorporation of naturalism into pragmatism can be seen in that naturalism similarly requires that for phenomena to be considered a fact, it must make a practical difference to us by making a causal difference in the course of our experience.

8 66 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 first place keeping powerful courts within their bounds; (2) in a case that clearly is without merit, the result will be the same for the litigants regardless of which court decides the question; and (3) determining a question that makes no practical difference wastes resources. 44 Pragmatism requires us to consider the results and effects a decision will have when we answer a legal question. Posner illustrates a contrary, non-pragmatic, conceptual approach by pointing to Justice Scalia s rejection of hypothetical jurisdiction: [F]or a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires. 45 Notice that this analysis is entirely formal and conceptual. It is driven by the idea of jurisdiction and makes no reference to the effects of the Court s decision. 46 Such a judgment is not naturalistically objective because there is no empirical fact about what jurisdiction is. And because there is no empirical fact about what jurisdiction is, jurisdiction cannot be objectively debated or understood: no one can empirically observe jurisdiction and state whether it is present in a given case. But effects and results can be observed, and the naturalistic approach to law is result-oriented and avoids conceptual formalism. 47 This naturalistic approach makes law a practical instrument that is used to achieve definite social ends. 48 In this way, law would resemble engineering, and the lawyer the social engineer who does not choose goals for society, but rather makes goals feasible. 49 Put differently, a naturalistic approach to law must separate the positive inquiry from the normative (whether dismissing the case will enlarge federal judicial power versus whether it should do so). 50 Although a naturalistic approach to law is about means not ends, norms still necessarily play a part in legal analysis. No type of instrumental reasoning can be put to human use without some normative choice, or at least without positing some end or goal. 51 In order to know whether means are 44. POSNER, supra note 5, at Id. at (quoting Steel Co., 523 U.S. at ). 46. See id. at See id. 48. See POSNER, supra note 3, at 14 (discussing Jeremy Bentham as the originator, in a limited but important respect, of Posner s pragmatic concept of law). 49. See id. at 63. The sanitized echo of Holmes s famous statement is unmistakable: if my fellow citizens want to go to Hell I will help them. It s my job. Letter from Oliver Wendell Holmes to Harold J. Laski (Mar. 4, 1920), in 1 HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI, , at 248 (Mark DeWolfe Howe ed., 1953). 50. See POSNER, supra note 5, at Gerard V. Bradley, Overcoming Posner, 94 MICH. L. REV. 1898, 1900 (1996).

9 2012] METHODOLOGICAL VERSUS NATURALISTIC 67 successful, we must know toward what end those means were directed. 52 Posner gives the example of a bankruptcy statute, the goal of which might be to reduce the number of bankruptcies and lower interest rates; whether this goal was satisfied could be known empirically. 53 Although a naturalistic approach to law separates the normative inquiry (whether there should be fewer bankruptcies and lower interest rates) from the positive, empirical one (whether the new statute accomplishes this goal), the naturalistic approach still requires a practical goal. Otherwise, the naturalistic project of measuring whether the law is advancing the goal becomes unintelligible. It is uncontroversial that a naturalistic or pragmatic legal program needs norms. But scholars question from where such norms can originate. Pragmatic insights to law in no way dictate which politically contestable theory of adjudication or which set of moral values a judge should adopt or allow to influence her decisions, Dr. Eric Rakowski has noted. 54 With Leia, we might wonder whether the Han Solo approach really cares about anything... or anyone. 55 Pragmatic norms cannot come from rationalistic evaluative schemes because naturalistic ontology denies the existence of non-empirically verifiable entities like moral values. 56 Thus, Dr. Sanford Levinson has described Posner s approach as being in the spirit of Critical Legal Studies, reducing all legal problems to ethical or political problems. 57 Professor Gerard V. Bradley argues that Posner ultimately only allows norms to be supplied by economics, though Bradley also says that Posner looks to evaluative concepts such as progress, better, and consequences. 58 Most accurately, for the pragmatist, laws norms are supplied by society s majority interests See POSNER, supra note 3, at 122; cf. Bradley, supra note 51, at 1908 ( We have heard Posner say that economic... analysis needs posited ends to get going.... But Posner s pragmatism... does not generate ends and goals.... ). 53. POSNER, supra note 3, at Eric Rakowski, Posner s Pragmatism, 104 HARV. L. REV. 1681, 1690 (1991). 55. STAR WARS EPISODE IV: A NEW HOPE, supra note Except to the extent moral values are mental states or attitudes, which may have empirically verifiable causal effects. For example, a judge may believe in morality, and that belief may affect his judgments. But morality itself, as something free standing apart from people s attitudes or minds, is denied ontological status by naturalism. See LEITER, supra note 12, at See Sanford Levinson, Strolling Down the Path of the Law (and Toward Critical Legal Studies?): The Jurisprudence of Richard Posner, The Problems of Jurisprudence, 91 COLUM. L. REV. 1221, (1991). I understand Levinson s point to be that for both Posner and CLS, legal problems are not decided by abstract legal principles. Instead, they are ultimately decided by political considerations, such as majority rule. 58. Bradley, supra note 51, at See POSNER, supra note 5, at 63.

10 68 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 According to Posner, pragmatism... relies on social consensus both as a way of deciding cases and as a source of legitimacy for judicial decisions. 60 Naturalism requires that for law to be objective, it must concern itself with only empirical facts. This conception has a tense relationship with normative discourse, since in many instances norms are not empirical facts and are effectively eliminated from a naturalistic reality. 61 Yet norms are necessary for the naturalistic project to be intelligible, and so naturalists look to social consensus to provide legal norms. But normative evaluation does not play a role in naturalistic legal objectivity. Instead, Naturalism deems legal judgments objective to the extent they are reducible to empirical facts. Correspondingly, to the extent legal judgments incorporate non-empirical norms, the naturalistic conception of objectivity should deem law non-objective. Posner s and Leiter s thought bear a strong relationship to that of Oliver Wendell Holmes, Jr., Roscoe Pound, and Benjamin Cardozo in seeing law as an instrument for the conscious pursuit of social welfare, an instrument whose master term was policy rather than principle, whose master institution was the legislature rather than the courts, and whose servants should devote themselves to social engineering rather than doctrinal geometry. 62 Like these legal realists, Posner and Leiter characterize law as instrumental problem solving rather than detached speculation as a means to an end meant to promote social welfare. 63 They seem to agree with these earlier thinkers in locating legal legitimacy in democratic consensus. 64 Fulfilling Holmes s prophecy that the lawyer of the future is the man of statistics and the master of economics, 65 Posner and Leiter urge lawyers to become social engineers, systematically investigating social problems, familiarizing themselves with the available methods of reform, and testing whether these had the intended effects. 66 Thus, Posner and Leiter are situated neatly in line with thinkers like Holmes, Pound, and Cardozo. II. LEGAL OBJECTIVITY AS PUBLICITY An alternative to Naturalism is what Gerald Postema has called objectivity as Publicity. In general, objectivity has three main structuring features: (1) 60. Lee Epstein, Jack Knight, & Andrew D. Martin, The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 CALIF. L. REV. 903, 951 (2003). 61. Except when they exist as empirically-verifiable mental states. LEITER, supra note 12, at Thomas C. Grey, Modern American Legal Thought, 106 YALE L.J. 493, 498 (1996). 63. Id. 64. Id. at O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897). 66. See Grey, supra note 62, at 499.

11 2012] METHODOLOGICAL VERSUS NATURALISTIC 69 judgments 67 must be independent; (2) judgments must be capable of being assessed for correctness; and (3) judgments must be intersubjectively invariant. 68 These structuring features of objectivity apply to any domain, not just law. 69 When these general features of objectivity are applied specifically to legal discourse, legal objectivity requires that: (1) Participants in the deliberative process conduct their deliberation only with normatively relevant reasons and arguments in view and assess the merits of the arguments only by normatively relevant standards; and (2) their participation is governed by the overarching aim of achieving reasonable common formation of judgment on the basis of the reasons and argument publicly offered. 70 It is worth noting that whereas the foundation of naturalistic objectivity is empirical facts, the foundation of objectivity as Publicity is non-empirical reason, and it would be fair to describe Publicity as rationalistic or reasonbased. Publicity relies on invisible reason to bind the legal universe together as Luke Skywalker trusts the Force to bind the galaxy. For a legal judgment to be independent, the first structuring feature of objectivity, it must transcend the subjectivity of the person engaged in the activity of judging (the judging subject ). 71 It must not be the product of improper factors like bias, idiosyncrasy, or ideology. 72 Rather, it should be the product of proper, normatively relevant reasons. 73 For a legal judgment to be capable of being assessed for correctness, the second structuring feature of objectivity, there must be standards for assessing a judgment s correctness, and these standards cannot simply be a judging subject s belief or opinion. 74 The structuring feature of correctness has three implications. First, it implies the possibility of mistake. 75 Standards that can justify can also condemn. Second, judgments must be conclusions of a process of deliberative reasoning. 76 By justifying a judgment based on standards of correctness, interlocutors must exchange reasons for their judgments and deliberate over the correctness of a judgment. Third, because discourse is conducted by reference to standards, both agreement and disagreement are 67. By judgments, Postema means claims, assertions, and assessments. Postema, supra note 2, at Id. at Id. at Id. at Id. at Postema, supra note 2, at Id. 74. Id. at Id. 76. Id.

12 70 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 intelligible (as opposed to mere mute assertions of opposition). 77 Standards for assessing correctness allow one judging subject to explain that his judgment satisfies the standard and another judging subject to explain why it does not. This can be contrasted with a disagreement without reference to standards, in which there is no possibility of deliberative reasoning but only unintelligible opposition. Relatedly, reasoning by reference to standards may create a path for moving from disagreement to agreement (and vice versa). 78 Before moving on, it is worth noting the heavy lifting done by reasons and standards in Publicity. Both are the key to their respective structuring features. Both must not equal the solely subjective beliefs or opinions of the judging subject. Both must be publicly accessible. It is likely that whether we can endorse objectivity as Publicity depends on whether proper reasons and standards of correctness can carry their allotted burdens. Given their importance to Publicity, one wants to know some things about these reasons and standards. For example, who says which reasons are proper or normatively relevant? And one may be disappointed to learn that Publicity does very little to answer such questions. However, I briefly suggest an analogy that may explain why Publicity says little about the content of its reasons and standards. Publicity is more like procedural law than substantive law. Publicity itself does not specify the substance, content, or nature of its reasons and standards. Instead, its job is to insist that judgments are created through a process of deliberating based on reasons and standards. This Article attempts to demonstrate that this procedure or method is enough to assess whether law is objective. Returning now to the structuring features of objectivity, the third feature is intersubjective invariance, meaning that there exists the possibility of different judging subjects confirming or disconfirming a given judgment based on standards of correctness and proper reasons. 79 Intersubjective invariance acts like a test for whether a judgment is based on proper reasons and standards of correctness. The important general point to record here is that it must be possible for other [judges] to assess a judgment, and confirm or disconfirm it, if it is to count, even at the limit, as objective in principle. 80 Notice something interesting here. A judgment could be objective even when other people look at it and disconfirm it. 81 How is this so? Consider the analogy of the math teacher who requires her students to show their work. When she assigns her students math problems, she does not 77. Postema, supra note 2, at Id. at Id. at Id. 81. Id. at 112 ( One can make an incorrect objective judgment and one s judgment can be correct, while failing standards of objectivity.... ).

13 2012] METHODOLOGICAL VERSUS NATURALISTIC 71 want them to state only their answers to the problems. She wants them to show the steps they took to arrive at their answers. If the students do so, the teacher is able to confirm or disconfirm their answers objectively. Because the students have shown their work and because their reasoning is subject to mathematical standards of correctness, the students answers can be deemed objective even if they are wrong. Intersubjective invariance requires a similar process. It requires judges to justify their legal judgments based on proper reasons and standards of correctness and to offer their judgments to others, publicly. This allows others to objectively confirm or disconfirm such judgments. This highlights that the conception of objectivity being applied here is methodological. This conception of objectivity is about process. Objectivity in this sense arises from arriving at judgments through a public, deliberative process. If we subject our judgments to this process, they become objects, things that other people can observe and confirm or disconfirm. 82 Assuming that intersubjective invariance were achieved, it would be unlikely the judgment is a product of mere subjectivity. It would demonstrate that the reasons and standards justifying the judgment transcend the judging subject. It is not a perfect test because it is possible that all judging subjects are systematically biased, merely sharing the same improper biases or ideologies or idiosyncrasies. The judging subjects may all agree not because their judgments are objective, but because they have become a hegemonic convention. 83 However, intersubjective invariance is a necessary feature of objectivity because its absence would support too compellingly the charge that a judgment was merely subjective. If no one could even theoretically confirm or disconfirm his or her judgments, it seems dubious that the proper reasons and standards of correctness are functioning or even functional. If reason is functioning correctly, intersubjective invariance should be possible. Other judges must be able to meaningfully evaluate a given legal judgment. Intersubjective invariance provides us with assurances that judgments are not merely subjective but are based on reasons and standards independent of and external to ourselves. 84 Because intersubjective invariance is a structuring feature of objectivity, it may not seem to follow that Postema s version of Publicity does not require actual agreement among judging subjects. 85 (Note that intersubjective invariance is different than agreement.) Postema states that agreement among 82. Postema, supra note 2, at 124 ( Clashes in public over the proper and reasonable understanding of past decisions... are signs that the products of the system can claim the right to be taken seriously as products of a credible structure of public practical deliberation. ). 83. Leiter, supra note 15, at Postema, supra note 2, at Id. at

14 72 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 judging subjects, rather than being a precondition to or expected result of objective deliberation, is a regulative ideal. 86 Later in this Article, I will argue that Publicity requires some degree of actual agreement: either a preponderance of agreement or increasing agreement over a reasonable amount of time. 87 But for now, I will focus on describing the regulative ideal of agreement. The regulative ideal s purpose is to influence the deliberative process toward objectivity by imposing discipline and constraints on the process and its participants. 88 Again, the deliberative process has two standards: (1) Participants in the deliberative process conduct their deliberation only with normatively relevant reasons and arguments in view and assess the merits of the arguments only by normatively relevant standards; and (2) their participation is governed by the overarching aim of achieving reasonable common formation of judgment on the basis of the reasons and arguments publicly offered. 89 These standards discipline the process s participants to argue reasonably and to offer their arguments and reasons to each other. 90 The goal is to justify one s judgments to others in terms one believes all can recognize and affirm. 91 Thus, the participants must discipline themselves not to offer arbitrary, idiosyncratic, or prejudiced reasons for their judgments because, given the regulative ideal of agreement, they can have no expectation that other participants in the process will find them persuasive or could come to share such reasons. 92 Agreement as a regulative ideal, as opposed to an expected outcome of objective deliberation, may also be better understood once we have considered the role of disagreement in objectivity. Objectivity s goal is strong deliberative consensus... based on a full and open public articulation and assessment of all relevant reasons and arguments. 93 This goal requires objectivity to provide opportunities for disagreement or any consensus achieved would not be the result of full, public, reasoned deliberation. Such a consensus could instead be the product of the exclusion from the process of members of the community or minority arguments. 94 However, if deliberative discourse values and respects disagreement, it demonstrates that the process is properly open to interlocutors and arguments. Divergence... signals that the 86. Id. at See infra Part IV.A. 88. Postema, supra note 2, at Id. at Id. at Id. at Id. 93. Postema, supra note 2, at Id.

15 2012] METHODOLOGICAL VERSUS NATURALISTIC 73 techniques of reason and argumentative insight are playing a vigorous role in the law. 95 Opportunities for public disagreement are essential to a deliberative process s claim to objectivity. 96 Disagreement may also promote objectivity by exposing certain reasons and arguments as biased, prejudiced, exclusionary, or unreasonable. 97 Disagreement in the deliberative process encourages the idea that the process can be self-correcting. 98 Objectivity as Publicity does not guarantee that improper reasons or standards will never prevail in deliberative discourse, but the opportunity for disagreement and dissent creates the possibility that such improper reasons or standards can be challenged, discarded, and corrected. The regulative ideal of agreement also has the important quality of requiring that agreement be achieved by reason and not force. 99 Publicity requires that reasons for a judgment must be those that could be accepted by all. Such acceptance is an important component of legitimacy, the very reason for seeking legal objectivity. Publicity is a reason-based conception of objectivity. Unlike Naturalism, Publicity does not eliminate but incorporates non-empirical, normative discourse. But this requires Publicity to explain how a judgment can be objective if it cannot be verified by reference to empirical facts, a question that will be considered at length in Part IV of this Article. Finally, whereas Naturalism is primarily an ontology (reality is empirical fact) that is closely related to an epistemology of empirical science, Publicity is a methodology that is not committed to a particular ontology. Publicity is a process for creating legal objects. It is based on adherence to this process that Publicity assesses whether a legitimating objectivity can be ascribed to legal judgments. Having described the naturalistic and methodological conceptions of legal objectivity, this Article now turns to evaluating these conceptions merits. III. WHY NOT NATURALISTIC OBJECTIVITY? Legal objectivity should not be defined in naturalistic terms. First, the success of science is not a good reason to prefer empirical science over nonempirical reason. Second, normative discourse is an ineliminable feature of law, and Naturalism s attempts to eliminate or separate it are futile and unhelpful. Third, scientific epistemology has limited relevance to law. Fourth, 95. Id. at 124 (quoting Christopher Kutz, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 YALE. L.J. 997, (1994)). 96. Postema, supra note 2, at Id. at Id. at Gerald J. Postema, Public Practical Reason: Political Practice, in THEORY AND PRACTICE 345, 357 (Ian Shapiro & Judith Wagner DeCew eds., 1995).

16 74 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 a naturalistic conception of legal objectivity has no ability to assess legitimacy and is the wrong conception of objectivity for assessing law s legitimacy. A. The Significance of Science s Success For the purpose of assessing whether law s use of coercive force is legitimate, this Article asks whether legal objectivity should be defined in terms of Naturalism or Publicity. The primary argument in favor of a naturalistic approach to law and legal objectivity over a reason-based approach, Posner and Leiter argue, is that empirical science has been more successful than non-empirical reason. 100 Hokey religions and ancient weapons are no match for a good blaster at your side This is a pragmatic argument and should be distinguished from a metaphysical one 102 on which Posner and Leiter claim not to rely: they do not claim that science provides philosophically certain knowledge. 103 The pragmatic approach dislikes metaphysics 104 because metaphysics makes no difference in the real world. There s no mystical energy field that controls my destiny, as Han Solo might say. Posner writes, There are no conceptual entities; the meaning of an idea lies not in its definition, its Form, its relation to other ideas, but rather in its consequences in the world of fact. 105 Posner argues that we should not be asking questions about conceptual entities that are inconsequential in the real world; instead we should consider [w]hat practical, palpable, observable difference does it make to us? 106 This same pragmatism can be seen in Leiter s definition of fact : a fact must make a causal difference in the course of our experience. 107 As Leiter notes, [T]he only possible criteria for the acceptance of epistemic norms norms about what to believe are pragmatic: we must simply accept the epistemic norms that work 100. For Posner and Leiter, success seems to primarily refer to technological advances. See LEITER, supra note 15, at 71 ( [Science] sends the planes into the sky, eradicates certain cancerous growths, makes possible the storage of millions of pages of data on a tiny chip. ); POSNER, supra note 3, at (discussing the atom bomb. ) 101. STAR WARS EPISODE IV: A NEW HOPE, supra note Posner similarly notes that such a pragmatic epistemology dislikes metaphysics (because they makes no practical difference) and is uninterested in creating an adequate philosophical foundation for its thought and action.... POSNER, supra note 3, at That scientific epistemology is our best guide to knowledge is, to be sure, no a priori truth... LEITER, Hart/Dworkin Debate, supra note 16, at 180. While Posner s and Leiter s arguments do not require accepting that science provides certain knowledge, it does seem to require assuming that other modes of inquiry, such as intuition or a priori reasoning, do not lead to certain knowledge See POSNER, supra note 3, at Id. at POSNER, supra note 5, at LEITER, supra note 15, at 67,

17 2012] METHODOLOGICAL VERSUS NATURALISTIC 75 for us (that help us predict sensory experience, that allow us to manipulate and control the environment successfully, that enable us to cope ). 108 So, the turn to empirical science and away from non-empirical reason follows for Posner and Leiter because while science has worked for us, nonempirical methods have not: a scientific epistemology deserves to be privileged over a rationalistic one because of the tremendous success such an epistemology has enjoyed to date. To simply push the scientific epistemology aside opens the ontological floodgates to a whole pre-enlightenment conception of the world that we seem to do better without. 109 [T]he philosophical track record of all forms of a priori analysis, conceptual or intuitive, is not especially encouraging. 110 Science not moral insight has made us more civilized As Leiter argues: [S]cience..., and the norms of a scientific epistemology... are the highest tribunal not for any a priori reasons, but because... science has... delivered the goods : it sends the planes into the sky, eradicates certain cancerous growths, makes possible the storage of millions of pages of data on a tiny chip, and the like. 112 Describing this scientific epistemology, Leiter says that [w]ith respect to questions about what there is and what we can know, we have nothing better to go on than successful scientific theory. 113 Posner argues similarly. 114 He concedes that science s epistemological foundations are uncertain but argues that science should be privileged epistemologically because of its practical successes. Although every bit of what we now believe about the nature of the universe may eventually be overthrown, in the meantime science reveals hidden mysteries, predicts successfully, and works technological wonders. 115 Meanwhile, in the backwater world of pure reason, Posner claims there are no useful inventions embodying moral theory. 116 So, the chief reason for 108. LEITER, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, in NATURALIZING JURISPRUDENCE 15, 50 (Brian Leiter ed., 2007) LEITER, supra note 15, at LEITER, Hart/Dworkin Debate, supra note 16, at POSNER, supra note 5, at LEITER, supra note 15, at LEITER, Hart/Dworkin Debate, supra note 16, at It should be noted, however, that Posner recognizes [t]he role of scientific inquiry in law is also limited, partly because of... the value rightly placed on the stability, certainty, and predictability of legal obligations. POSNER, supra note 3, at 455. He also notes that ethical and practical constraints limit science s application to law. Id. at, 455, 460. He goes so far as to suggest that imbuing the law with scientific methodology might be unjustified. Id. at POSNER, supra note 3, at 66 (quoting W.V.O. Quine, Natural Kinds, in NATURALIZING EPISTEMOLOGY 31, 43 (Hilary Kornblith ed., 1985) POSNER, supra note 5, at 60.

18 76 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 57:59 privileging a scientific or naturalistic epistemology, and correspondingly to define legal objectivity in terms of empirical science, is because science is successful. This argument seems plausible at first. The successes of science are obvious and dramatic, and few people want to return to the Dark Ages. But it turns out to be impossible to argue that science has been successful while rationalism or other forms of a priori analysis have not. Notice how the claim science is successful is fraught with normative implications. To claim that science is successful or that it works is a normative evaluation. In what way is science successful? Leiter notes that science eradicates some cancer. Why is that a success? It is a success because it preserves human life, which we value. But the value of human life cannot be identified by empirical science. The value of human life emerges from non-empirical, normative discourses like morality, theology, and philosophy. Without such normative discourse, the claim that science is successful is unintelligible. Yet it is precisely such normative discourse that is eliminated in Posner and Leiter s Naturalism. It is tellingly inconsistent to impugn normative discourse while resting your entire system on the normative claim that science is successful. It resembles the child who kills his parents and pleads for the mercy of the court on account of being an orphan. Maybe it isn t chutzpah but dubious metaphysics. Pragmatists may dislike metaphysics, but [t]he price of having contempt for philosophy is that you make philosophical mistakes. 117 Posner and Leiter strenuously avoid claiming to be doing metaphysics or making a priori claims. Attempting to insulate themselves against charges of scientism or verificationism, both Posner and Leiter volunteer that scientific epistemology is not privileged a priori; they are not claiming scientific knowledge is philosophically certain. 118 Posner, for example, denies what would be a metaphysical claim that the only worthwhile knowledge is scientific knowledge But his best efforts to avoid metaphysics fail, among other reasons, because he is not satisfied with giving a descriptive account of law; he also wants to advocate an approach to law. 120 Posner wants to talk about not just what law is but about what law ought to be. He notes that [t]he notion of using the scientific method to guide social reform is quintessentially pragmatic. 121 Unfortunately, Posner s elimination of soft concepts from ethics leaves something of a [normative] vacuum. 122 One cannot guide social reform without non-empirical norms (i.e., the value of 117. JOHN R. SEARLE, THE MYSTERY OF CONSCIOUSNESS 60, 62 (1995) LEITER, supra note 15, at POSNER, supra note 5, at Fish, supra note 2, at POSNER, supra note 3, at Luban, supra note 11, at 1019.